Criminal Trial Procedure in the Customary Court

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HW Emmanuel J. Samaila, Esq

I Introduction

The aim of this paper is to enlighten participants about the procedure for criminal trial in the Customary Court. At the end of this presentation, participants will also have a better understanding of the criminal jurisdiction of the Customary Court and the laws regulating criminal trial in the Customary Court.

II The Criminal Jurisdiction of the Customary Court.

There are two classes of Customary Courts in Kaduna State. These are: (a) Upper Customary Court, and (b) Customary Court.[1] In this paper, the term “Customary Court” refers to both Courts. The Customary Court has both civil[2] and criminal[3] jurisdiction. The Courts are listed among the criminal courts in Kaduna State.[4]

The nature and extent of the criminal jurisdiction of the Customary Court is often misconceived especially when viewed vis-a-vis the criminal jurisdiction of the Sharia Court. This misconception is a result of the misperception of the Court as an improved version of its precursor, the defunct Area Court, which was presided over by laymen with a limited knowledge of the law.

Today, however, the Customary Court is presided over, in the majority, by legal practitioners as required by its establishment law.[5] In order to enhance the administration of criminal justice, the Administration of Criminal Justice Law 2017 (“the ACJL”) restricts the exercise of criminal jurisdiction in the Customary Court to only the Courts presided over by legal practitioners.[6]

Unlike its civil jurisdiction which is strictly limited to causes and matters under customary law, the criminal jurisdiction of the Customary Court does not include customary crimes or offences whose prosecution and adjudication would have necessitated the usage of a customary criminal procedure. The offences which the Customary Court is empowered to adjudicate upon are specified in its establishment law.[7] Section 22 of the Customary Courts Law, 2001 (as amended) provides thus:

“A Customary Court shall have jurisdiction to try and determine criminal cases and to impose such punishment thereof as are prescribed in the Second Schedule to this law, or any other law enacted by the Kaduna State House of Assembly.”

The types of offences over which the Customary Court has jurisdiction are enumerated as follows:

  1. Contempt of court committed in the face of the court.
  2. Statutory offences as may be provided in the Laws.
  3. As may be provided pursuant to section 22 of this Law [i.e. “any other law enacted by the Kaduna State House of Assembly”][8]

It is noteworthy that the ACJL[9] contains some restrictions to the criminal jurisdiction of the Customary Court. The Customary Court, despite being presided over by legal practitioners, are exclusively denied jurisdiction over the offences contained in some selected sections of the Penal Code.[10]

It is trite law that only statutory offences can be prosecuted. Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hereafter referred to as “the 1999 Constitution” provides that:

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”

This provision, in effect, gives no recognition to customary crimes or offences, hence their non-prosecutorial and non-adjudicatory status, despite their existence in the Nigerian customary law.

III Laws Applicable to Criminal Trial in the Customary Courts

Criminal trial in the Customary Court is conducted in accordance with relevant substantive penal and procedural laws in order to ensure that justice is done between the parties, in particular, and to the society, in general.

It is important to state categorically that there is neither a Customary Penal Code nor a Customary Criminal Procedure Code applicable to criminal trial in the Customary Court as there is a Sharia Penal Code[11] and a Sharia Criminal Procedure Code[12] in the Sharia Court. The rationale for this is not farfetched: the offences triable by the Customary Court are not customary crimes but statutory offences.[13]

The laws governing criminal trial in the Customary Court include:

The 1999 Constitution (as amended). Chapter IV provides for the fundamental rights which include the right to fair hearing in a criminal proceeding.[14]

  • The Penal Code Law, 2017 (as amended). This is the principal substantive law of crimes in Kaduna State. The Law provides for what constitutes a particular offence and also stipulates the punishment for each offence.
  • The Administration of Criminal Justice Law, 2017. This is the principal procedural law governing criminal proceedings in Kaduna State. It makes elaborate provisions for the different institutions involved in the administration of criminal justice in Kaduna State. The Law contains a detailed Tabular Statement of Offences[15] which shows the courts with the jurisdiction to try the offences contained in the Penal Code. It also contains Forms of Charges[16], a table of Offences Which May Be Compounded[17] among others.
  • Customary Courts Law, 2001 (as amended). This is the establishment law of the Customary Court in Kaduna State. It contains the provision vesting the Customary Court with its criminal jurisdiction[18] as well as provisions guiding the Court in the exercise of its criminal jurisdiction.[19] The Law also contains some offences and their punishments.[20]
  • . The Kaduna State Customary and Upper Customary Courts Practice Directions, 2014 contains some directions for the adjudication of criminal cases in the Customary Court. For instance, a period of 4 months is provided as the Time Standard for the determination of criminal causes and matters.[21]
  • The Evidence Act 2011 (as amended). Section 256(2) of this Act provides, in essence, that the Customary Court is to be guided by its provisions in its determination of criminal causes or matters. However, the Customary Court, in its proceedings in any criminal cause or matter, is bound[22] by the provisions of the Act on the burden and standard of proof.[23]
  • Children & Young Persons Law of Kaduna State. This law contains rules guiding the trial of juveniles who are alleged to have committed a crime.[24] Case law. There is a plethora of decided criminal cases which contain practice and procedure of criminal trial. These decisions from superior courts are binding on lower courts, the Customary Court inclusive.
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It is noteworthy that in addition to the foregoing laws governing criminal trial in the Customary Court, the ACJL grants discretionary power to a Judge whenever a lacuna appears in the Law. It provides that: “Where there are no express provisions in this Law, the Court may apply any procedure that will meet the justice of the case.”[25] (Emphasis supplied)

IV Basic Features of Criminal Trial Procedure in the Customary Court

The basic features of criminal trial procedure in the Customary Court include the following:

  1. The Institution of cases. The various ways of instituting criminal cases at the Customary Court are as follows: First Information Report (FIR).[26] b. Direct Complaint. This may be made in writing or orally.[27] In either case, the Registrar shall record the complaint in the Criminal Cause Book from which the Summons or Warrant of Arrest will be filled. The Complaint may either be on oath or not on oath.[28] The Complaint may be made by any of the following persons: the Complainant in person, his legal representative, or any person authorized to make it.[29] The Complaint may be referred to the Police for investigation by the Court[30] and it must fall within the time limit provided for making a complaint.[31] It is important to state that, whichever means of instituting a matter is used, all the required information must be reflected on the process. Section 104 ACJL provides that:  “A complaint, summons, warrant or any other document laid, issued or made for the purpose of or in connection with any proceedings before a Court for an offence, shall be sufficient if it contains a Statement of the specific offence with which the Suspect is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”
  1. The Service of Summons or the Execution of Warrant of Arrest. Section 127 ACJL provides: “In every case, the Court may proceed either by way of summons to the Defendant or by way of warrant for his arrest in the first instance according to the nature and circumstances of the case.” The summons or warrant is to be prepared and served or executed in accordance with the law.[32]
  1. The Arraignment. After the service of the summons or the execution of a warrant of arrest, the Suspect is expected to appear or be produced in Court for the commencement of his trial on a given date.[33] A warrant of arrest may be issued by the Court if he fails to appear in Court on that date.[34] It is at this stage of the proceeding that the allegations or complaint against the suspect will be read or stated to him in the language he understands while he is standing or sitting in the dock.[35]
  1. The Plea. After reading the allegation or complaint to the Suspect, his plea will be taken. He may either admit or deny the commission of the alleged offence.[36] He may also offer to or accept an offer of plea bargain from the Prosecutor.[37] If he pleads guilty, he will be summarily tried, if the offence is triable summarily.[38] However, if he pleads “Not guilty”, he shall be admitted to bail and released, if the offence he is charged with is bailable; if he fails to satisfy his bail conditions, he will be remanded.[39] In certain circumstances, the trial of a Defendant may be continued in his absence but his presence is mandatory during sentencing.[40]
  1. The Prosecution’s Case.[41] The prosecution calls its witness to give his evidence-in-chief. This is followed by a cross-examination, if any, by the defendant or his Counsel. The witness may be re-examined if the prosecution establishes the existence of an ambiguity in the answers the witness gave during cross-examination. A visit to the locus criminis may be conducted, if necessary.[42] Afterwards, the prosecution closes its At any time during or after the conclusion of the prosecution’s case, a defendant may offer to or accept from the prosecution a plea bargain.[43] If a plea bargain is reached, the Judge will proceed in accordance with the laid down procedure.[44]
  1. No case submission. After the close of the prosecution’s case, the Court will adjourn for ruling unless the defendant’s counsel (if any) opts to make a no-case submission. If this submission is made, the prosecution may reply to it. The defendant’s counsel may make a further reply on point of law before the Court adjourns for ruling.[45] The no-case submission may also be made by the Court on its own motion.[46] The Judge may either hold that the Prosecution’s evidence has either failed or succeeded in establishing a prima facie case against the defendant. If the no-case submission fails or the Judge holds that a prima facie case has been established against the defendant, he will make a brief ruling to that effect and proceed to frame a charge for the offence against the defendant. He will then take the defendant’s plea, which may basically be either “Guilty” or “Not guilty”. If he pleads “Not guilty”, the Judge will adjourn the matter for the defendant to enter his defence.[47] If he pleads “Guilty”, the Judge will convict him and listen to his allocutus (if any) before sentencing him.[48] However, if the no case submission succeeds or the Judge finds that a prima facie case has not been established against the defendant, he will give the reason for his finding and subsequently discharge the defendant.[49]
  1. Defence.[50] After the Court rules that a prima facie case has been established against the defendant, the Court will call upon him to enter his defence, unless he pleads “Guilty” to the charge framed against him.[51] At the commencement of his defence, the defendant or his counsel may choose to recall the prosecution’s witnesses for further cross-examination.[52] Such witnesses may be further re-examined by the prosecution if the Judge is satisfied that an ambiguity exists. Afterwards, the defendant may call his own witnesses who will undergo examination-in-chief. After their cross-examination, if any, by the prosecutor, they may be re-examined by the defendant before he closes his case and makes his closing address.[53] A visit to the locus criminis may also be undertaken at this stage, if necessary.[54]
  1. [55] The judgment necessarily follows the closure of the case of the parties and it must be written and delivered in accordance with laid down procedure. The Judge may reach a verdict of either “Guilty” or “Not Guilty” against the defendant. If he finds the defendant “Guilty”, the Judge will listen to the allocutus, if any, of the Convict before sentencing him. The judgment may also contain other orders such as an order of cost, compensation, damages or restitution. Conversely, the defendant will be discharged and acquitted if the verdict is “Not guilty”. The sentence must be in accordance with the relevant provisions of the law.[56] All appeals against the decision of the Customary Court in criminal matters lie to the High Court and the convict is entitled to 30 days after the delivery of the judgment within which to file an appeal.[57]
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VII. Recommendation and Conclusion

Before concluding this presentation, it is necessary to make a recommendation for a more specific delineation of the criminal jurisdiction of Customary Court Judges to pass sentences as there is for their colleagues in the Magistrates Court. It is believed that if this is done, Customary Court Judges in Kaduna State will be more certain of the limit of their criminal jurisdiction. The resultant effect will be a more effective and efficient delivery of criminal justice in the Customary Court as well as enhancing the realization of the purpose of the ACJL as provided in its Section 4. To this end, Section 18 ACJL may be adapted and incorporated into an amendment of the Second Schedule of the Customary Courts Law 2001 (as amended) as follows:

Jurisdiction of the Customary Court Judge to Pass Sentence

(1) An Upper Customary Court Judge of the First grade may pass the following sentences:

(a) imprisonment for a term not exceeding fourteen years;

(b) fine not exceeding three hundred thousand naira;

(c) caning; and

(d) detention under Section 34 of the Penal Code.

(2) An Upper Customary Court Judge of the Second grade may pass the following sentences:

(a) imprisonment for a term not exceeding twelve years;

(b) fine not exceeding two hundred thousand naira;

(c) caning; and (d) detention under Section 34 of the Penal Code.

(3) A Principal Customary Court Judge of the First grade may pass the following sentences:

(a) imprisonment for a term not exceeding ten years;

(b) fine not exceeding one hundred thousand naira;

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(c) caning; and (d) detention under Section 34 of the Penal Code.

(4) A Principal Customary Court Judge of the Second grade may pass the following sentences:

(a) imprisonment for a term not exceeding eight years;

(b) fine not exceeding seventy thousand naira;

(c) caning; and

(d) detention under Section 34 of Penal Code.

(5) A Senior Customary Court Judge of the First grade may pass the following sentences:

(a) imprisonment for a term not exceeding five years;

(b) fine not exceeding fifty thousand naira;

(c) caning; and

(d) detention under Section 34 of the Penal Code.

(6) A Senior Customary Court Judge of the Second grade may pass the following sentences:

(a) imprisonment for a term not exceeding three years;

(b) fine not exceeding forty thousand naira;

(c) caning; and

(d) detention under Section 34 of the Penal Code.

HW Emmanuel J. Samaila, Esq. is a Judge of the Customary Court, Fadan Kamantan, Kaduna State and can be reached on samailaemmanuelj@gmail.com

Footnotes

[1] Customary Courts Law, 2001 (as amended) s4(2)(a))

[2] Ibid s22)

[3] Ibid s21

[4] ACJL 2017 s8(i) & (j)

[5] CCL 2001 (n2) s4(b)

[6] See the definition of “Court” under ACJL s3

[7]  ACJL 2017 (n5) s15(3)

[8]CCL 2001 (n2) Second Schedule

[9] ACJL 2017 s15

[10] ibid s15(2)

[11] Sharia Penal Code Law 2002

[12] Sharia Criminal Procedure Code Law 2002, Law No. 5 of 2002

[13] 1999 Constitution s36(12). See Aoko v Fagbemi [1961] ALL NLR 400 where adultery, a customary “crime”, was held not to be an offence under the Criminal Code.

[14] s36(4)-(12)

[15] ACJL 2017 (n5) Appendix A

[16] ibid Appendix B

[17] ibid Appendix C

[18] CCL 2001 (n2) s22

[19] ibid ss26, 30, 31, 34-36, 53, 54, 59, etc

[20] ibid PART XI: ss60-70

[21] PD 2014 Rule 4(c)

[22] EA 2011 s256(3)

[23] ibid ss134-140

[24] CYPL s449

[25] ACJL 2017 (n5) s491(2)

[26] ibid s122(a)

[27] ibid ss103 & 122(a)

[28] ibid s103(2)

[29] ibid 103(3)

[30] ibid s103(5)

[31] ibid 106

[32] ibid ss103(4), 104 & 128

[33] ibid s126

[34] ibid s144

[35] ibid s281

[36] ibid ss125(8)-(9); 283, 285-286; 288

[37] ibid s282

[38] ibid ss125(7)-(8); 286(1)-(2); 361(1)(c) ACJL

[39] ibid PART XX

[40] ibid s363(4) & (5)

[41] ibid PARTS XXVIII & XXXII ACJL

[42] ibid s275

[43] ibid s282(1)-(7)

[44] ibid s282(8)-(16)

[45] ibid ss314 & 315

[46]  ibid s313

[47] ibid s285

[48] ibid s286

[49] ibid s313

[50] ibid s313

[51] ibid s229(2)

[52] ibid s268

[53] ibid s315

[54] ibid 275

[55] ibid ss318-321; PART XXXIII

[56] ibid ss20, 21-23, 322 ACJL; PARTS XLI & XLIV; Penal Code Chapter III

[57]CCL 2001 (n2) s53(2) & (3); ACJL s482

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